48:0833(86)AR - - HHS, SSA, Office of Hearings and Appeals and AFGE, Council 215 - - 1993 FLRAdec AR - - v48 p833



[ v48 p833 ]
48:0833(86)AR
The decision of the Authority follows:


48 FLRA No. 86

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 215

(Union)

0-AR-2453

_____

DECISION

November 3, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement when it failed to accord the grievant priority consideration for a position. The Arbitrator sustained the grievance and awarded the grievant backpay and benefits lost as a result of the Agency's violation of the parties' agreement. As part of his award, the Arbitrator directed the Agency to reimburse the Union for the cost of one hearing day and one-half additional day of the Arbitrator's time. The Agency excepts only the portion of the award that requires payment to the Union.

For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient. Therefore, we will deny the exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance claiming that the Agency had failed to accord the grievant priority consideration for the position of Congressional and Public Inquiry Analyst (CPIA). The grievance was not resolved and was submitted to arbitration. The Union advised the Agency of its intent to call a particular witness at the hearing and requested authorization for travel and per diem for that witness. The Agency refused to authorize the travel. The parties were unable to resolve this matter prior to the hearing. At the hearing, the Union raised the Agency's refusal to authorize travel for the Union's witness as a threshold issue. The Arbitrator ruled that the witness's testimony, which related to the contract provision regarding priority consideration, was relevant to the case and that there was nothing to preclude the Agency from paying his travel expenses. The Union requested a continuance in order to obtain the witness's presence. The Union also argued that the Agency should be held responsible for the expenses connected with the additional hearing day and other time attributable to its refusal to authorize travel for the Union's witness. The Agency opposed the request, arguing that the Union could have produced the witness at its expense and sought reimbursement later. The Arbitrator took that issue under advisement.

Subsequently, the parties reconvened the hearing. On the merits of the grievance, the Arbitrator framed the issue as follows:

Did the Agency violate the National Agreement, the law and/or regulations, by not affording the grievant bona fide priority consideration for non-competitive selection and by not selecting Grievant for the Congressional and Public Inquiry Analyst Position to the position of Congressional and Public Inquiry Analyst (GS-301-7/9) under Vacancy Announcement No. OHA-91-23? If so, what shall the remedy be?

Award at 2.

The Arbitrator found that the Agency did not afford the grievant "the full, bona fide, good faith priority consideration" that Article 26 of the parties' agreement required.(1) Id. at 15. He stated that under the agreement, priority consideration "must take place prior to, and not in competition with, or comparison to, other applicants on the [Best Qualified] List" and that an employee may not be rejected under priority consideration merely because there is or might be a better candidate for the position. Id. at 13. Although the Arbitrator noted that priority consideration was not equivalent to selection, he determined that it is a "substantive right accorded employees, to which obligations and benefits attach, and not merely . . . a procedural exercise." Id. at 14. The Arbitrator concluded that, but for the Agency's failure to afford the required consideration, the grievant would have been selected for the CPIA position.

The Arbitrator also addressed a claim that the Agency discriminated against the grievant, based on protected activity, when she was not selected for the CPIA position. In this regard, the Arbitrator found that the grievant had exercised her right to priority consideration as a result of a grievance settlement and that this information had been communicated to the selecting official in violation of the parties' agreement. The Arbitrator found that the Agency failed to demonstrate that the grievant would not have been selected had she not engaged in the protected activity of filing a grievance.

In ordering relief, the Arbitrator initially granted the Union's request to amend the remedy portion of the grievance. He directed the Agency to promote the grievant to the next available CPIA position that she would have received if the Agency had not acted improperly and to make her whole for any lost pay and benefits. The Arbitrator also retained jurisdiction for the limited purpose of calculating the pay and benefits due. However, the Arbitrator rejected the Union's request that the selecting official be disciplined and that the Agency apologize to the grievant.

The Arbitrator also addressed the Union's request for travel and per diem for its witness, payment for the additional hearing day and for the Arbitrator's time, and $1,000.00 in damages. Having found that the testimony of the Union's witness was necessary, the Arbitrator further found that by refusing to authorize the witness's travel, the Agency violated Article 25, Section 5(E) of the parties' agreement. The Arbitrator stated that the Agency's authority to reduce the number of witnesses was limited to "eliminat[ing] duplicative testimony" and "[did] not allow the Agency to dictate the manner in which the Union presents its case." Id. at 20 (emphasis omitted). The Arbitrator concluded that the Agency's violation of the agreement directly "resulted in the prolongation of the hearing process" and "added an extra issue, and extra time, to this analysis." Id. at 21. Accordingly, the Arbitrator directed the Agency to pay the Union $300.00, for the Union's share of one hearing day and one-half an additional day of the Arbitrator's time, corresponding to "the amount of extra time attributable to the Agency's improper action." Id. However, the Arbitrator denied the Union's request for $1,000.00 in damages on the basis that such damages were "indirect, speculative, and unproven." Id.

III. Positions of the Parties

A. Agency

The Agency excepts only the portion of the award that directs the Agency to pay the Union's share of one hearing day and one-half additional day of the Arbitrator's bill. First, the Agency argues that the award fails to draw its essence from the parties' agreement. Specifically, the Agency notes that Article 25, Section 5(B) of the agreement provides that the Arbitrator's fees and expenses will be shared equally by the parties. The Agency maintains that the Arbitrator understood that the allocation of fees would be governed by Article 25, Section 5(B) of the agreement. However, the Agency asserts that the Arbitrator disregarded the language of that provision by directing the Agency to pay an unequal share of the Arbitrator's fees. The Agency also claims that the Arbitrator exceeded his authority. In this connection, the Agency maintains that the Arbitrator modified the fee provision of the agreement in violation of Article 25, Section 6, which states that the Arbitrator has no power to add to, subtract from, disregard, alter, or modify any terms of the agreement.

B. Union

The Union notes that the parties did not stipulate the issues to be resolved by the Arbitrator. In the absence of a stipulation, the Union contends that the Arbitrator's formulation of the issues and remedies must be accorded substantial deference. In this regard, the Union argues that the Arbitrator properly formulated an equitable remedy based on his interpretation of the parties' agreement. The Union claims that the Arbitrator found that Article 25, Section 5(B), on which the Agency based its arguments, related only to the responsibility of each party to pay the Arbitrator one-half of his fees and expenses but did not preclude him from awarding compensation to either party. Accordingly, the Union maintains that the Agency's exceptions constitute mere disagreement with the Arbitrator's interpretation of the parties' agreement and do not provide a basis for finding the award deficient.

IV. Analysis and Conclusions

For the following reasons, we find that the Agency has failed to establish that the award is deficient. Consequently, we will deny the exceptions.

First, we reject the Agency's contention that the award is deficient because it fails to draw its essence from the parties' agreement. For an award to be found deficient on this basis, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1043 (1991).

The Agency has not demonstrated that the award fails to draw its essence from the parties' agreement under any of the tests set forth above. Contrary to the Agency's assertion, the Arbitrator did not ignore Article 25, Section 5(B) of the agreement. Rather, the Arbitrator found that the Agency had violated Article 25, Section 5(E) by refusing to authorize travel expenses for the Union's witness. The Arbitrator determined that as a direct result of the Agency's decision, the case required the Arbitrator's "prehearing involvement" and "extended a single day hearing to two days." Award at 21. Consequently, the Arbitrator directed the Agency to compensate the Union for a share of the expenses for the second hearing day and the Arbitrator's additional time. We do not view the Arbitrator's award as irrational, implausible or so unconnected with the wording and purpose of the agreement as to evidence a manifest disregard for the agreement. Instead, we view the Agency's exception as disagreement with the Arbitrator's findings, reasoning, and conclusion as well as disagreement with his interpretation and application of the agreement. Such an exception provides no basis for finding the award deficient. See, for example, U.S. Department of Defense, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri and National Federation of Federal Employees, Local 1827, 35 FLRA 1307, 1309-10 (1990) (union's argument that arbitrator's fee assessment disregarded the agreement provided no basis for finding the award deficient); Pension Benefit Guaranty Corporation and National Treasury Employees Union, Chapter 211, 32 FLRA 141, 144-46 (1988) (agency failed to establish that the arbitrator's ruling on the division of fees was deficient).

We also reject the Agency's contentions that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when, for example, the arbitrator resolves an issue not submitted to arbitration or awards relief to persons who are not encompassed within the grievance. See, for example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 35 FLRA 1175, 1177-78 (1990). However, in the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of issues to be resolved in an arbitration proceeding. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Chicago, Illinois and National Air Traffic Controllers Association, 41 FLRA 1441, 1448 (1991).

Here, one of the issues addressed by the Arbitrator in response to arguments raised by the parties at the initial arbitration hearing was whether the testimony of the Union's witness was relevant to the merits of the case and, consequently, whether the Agency was required to authorize and pay for the witness's travel expenses. The Arbitrator's finding that the testimony was necessary to the case and that the Agency violated the parties' agreement in denying the Union's request for such expenses was directly responsive to the issue addressed by the Arbitrator and argued by the parties. In our view, the relief that was awarded by the Arbitrator necessarily arose from his interpretation of the issue. As noted, the Arbitrator found that the Agency violated Article 25, Section 5(E) when it refused to authorize travel and per diem for a Union witness, which prolonged the hearing process and resulted in additional issues for the Arbitrator to decide. The award reflects the Arbitrator's assessment of the expense of extra time attributable to the Agency's improper action. In our view, the Agency is merely disagreeing with the Arbitrator's interpretation of the collective bargaining agreement and with his findings and that such exception provides no basis for finding the award deficient. See American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 47 FLRA 692, 696-700 (1993) (Member Armendariz dissenting); American Federation of Government Employees, Local 1923, AFL-CIO and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 911, 919 (1992).

Moreover, we disagree with the Agency's assertion that the Arbitrator modified the fee provision of the agreement. The Arbitrator simply found, in the circumstances of this case, that compensation for the Agency's violation of Article 25, Section 5(E) was appropriate. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 2608, 38 FLRA 28 (1990).

V. Decision

The Agency's exceptions are denied.

APPENDIX

The relevant provisions of the parties' agreement are as follows:

Article 25, Section 5--Procedures

B. The arbitrator's fees and expenses will be shared equally by the par